The current state of criminal law confiscation of property

Bargaev Damir Kamilevich Postgraduate Student, Department of Criminal and Penal Enforcement Law, Saratov State Law Academy 410056, Russia, Saratovskaya oblast', g. G. Saratov, ul. Ul. Vol'skaya, 1, kab. 420, 421, 716 damir.bars@mail.ru Other publications by this author

Relevance of the research topic. The centuries-old history of countering crime as an eternal negative social phenomenon continues to exist. Criminal law instruments continue to maintain leading positions in containing and minimizing the consequences of a socially negative nature. Domestic criminal legislation traditionally undergoes a significant number of changes in order to comply with changing social relations. The current state of crime, namely the last ten years, is characterized by a general tendency to reduce the number of registered criminal acts. The global policy of humanization of criminal legislation certainly has a positive impact on the formation of the legal and democratic foundations of the state. Special attention should be paid to the institution of confiscation of property, which has undergone ambiguous changes and very controversial consequences. No one should receive the proceeds of crime. This is not only an indisputable fundamental basic legislative principle, but also a moral one.

Thus, realizing the high relevance of the group of public relations we are considering, within the framework of this scientific article it is necessary to investigate the current state of the institution of confiscation of property, identify the current stages of development and develop further ways of improvement as a basis for further research.

The degree of scientific development of the research topic. A.B. Brilliantov, A.I. Vasiliev, I. M. Galperin, A. A. Zhizhilenko, Yu.N. Zagudaev, A. I. Zubkov, V. N. Ivanov, M. M. Malkin, I. L. Marogulova, A. G. Mikhaylants, A. S. Mikhlin, drew scientific interest in the confiscation of property as a special tool of criminal law protection. A. B. Stepanishchev, M. D. Shargorodsky, etc.

Special attention should be paid to the dissertation works of I. I. Golubov, V. A. Pimonov, A.V. Stepanishchev, I. M. Tsokuyeva and K. N. Shutov devoted to the confiscation of property as a type of criminal punishment; the work of N. N. Viskov on special confiscation; the works of D. Y. Borchenko, A. A. Propostin, A. I. Malyshev, E. V. Martynenko, D. V. Tolkov, V. B. Abramenko, S. Yu. Samoilova, R. A. Khachaka, O. V. Kurlaeva devoted to the confiscation of property as another measure of a criminal nature.

Methodology and methods of research. The basic universal method of studying society and thinking in their development is applied – dialectical. Special attention is paid to the statistical method by which the necessary official data are obtained and investigated to confirm the hypothesis of improving the institution of confiscation of property. With the help of the historical and legal method, the modern stages of the development of the institute under consideration are determined. The basis of the study consists of an analysis of domestic legislative and doctrinal provisions based on the formal legal method. The use of such techniques allows us to identify common approaches to the consideration of legal problems and are characteristic of all sciences, including criminal law.

The genesis of property confiscation. From the legal point of view , the existence of the institution of confiscation of property can be considered:

– as a type of punishment until December 2003;

– the period of confiscation of property by criminal procedural means;

– and since July 2006 as another measure of a criminal nature.

The institution of confiscation of property as a form of punishment until December 2003 was studied in detail by such authors as I. M. Tsokueva ^[1], I. I. Golubov ^[2], K. N. Shutov ^[3], A.V. Stepanishchev ^[4], V. A. Pimonov ^[5].

The unique history of the development of the institute in question begins with the first mentions in the Russian Truth. Special attention should be paid to the Soviet period, during which one of the key elements of the resistance of representatives of the overthrown class was the confiscation of property. Further transformation in the post-Soviet years is associated with the liquidation of this institution as a relic of Soviet power, which seemed very controversial.

The researchers believed that the purpose of the punishment during the confiscation of property was to strengthen criminal responsibility for committing a mercenary criminal act. It was proposed to preserve the punishment in cases of serious crimes of a mercenary nature. In addition, the authors identified numerous problems of the existence of sanctions in the form of confiscation of property, in particular, not all mercenary elements of crimes contained this type of punishment.

In December 2003, the domestic legislator took measures to humanize criminal legislation. Taking into account the very low effectiveness of such a type of punishment as confiscation of property, it is proposed to exclude it from the Criminal Code of the Russian Federation, replacing it with a fine as an additional type of punishment. At the same time, it should be borne in mind that property acquired by criminal means is subject to confiscation in accordance with the procedure provided for in Article 81 of the Criminal Procedure Code of the Russian Federation (Explanatory Note to the draft Federal Law No. 162-FZ dated 08.12.2003 "On Amendments and Additions to the Criminal Code of the Russian Federation").

During the absence of confiscation of property in criminal law, N. V. Viskov ^[6] draws attention to the special confiscation of property, in which special attention is given to criminal procedural means of ensuring that in the period under consideration by the author was particularly relevant.

In July 2006, law-making bodies, in connection with the adoption of the Federal Law "On Ratification of the Council of Europe Convention on the Prevention of Terrorism" and the Federal Law "On Countering Terrorism", amend certain Legislative Acts of the Russian Federation (Explanatory Note to the draft Federal Law No. 153-FZ of 27.07.2006 "On Amendments to Certain Legislative Acts of the Russian Federation In connection with the adoption of the Federal Law "On Ratification of the Council of Europe Convention on the Prevention of Terrorism" and the Federal Law "On Countering Terrorism"). The first version of the bill provided for amendments to the Code of Criminal Procedure of the Russian Federation aimed at establishing the procedure for the confiscation of money, valuables and other property, not only obtained as a result of criminal acts, but also used to finance terrorism or extremist activities, as well as to consolidate the norm according to which such property in urgent cases is subject to arrest on the basis of an investigator's decision without obtaining a court decision. Before the preliminary consideration of the draft law submitted to the State Duma, amendments were adopted concerning the implementation of the provisions of international legal acts, according to which the deprivation of the material basis of terrorism is one of the means of combating terrorism, the Criminal Code is supplemented by a new chapter "other measures of criminal legal impact", which enshrines the provisions on the confiscation of property (articles 1041 – 1043 of the Criminal Code of the Russian Federation). According to a court decision, money, valuables and other property obtained as a result of the commission of a crime or used or intended for the financing of terrorism, an organized criminal group, an illegal armed formation, a criminal community or a crime, as well as tools, equipment and other means of committing a crime, are subject to confiscation.

The return to criminal legislation of the institution of confiscation of property with the transformation from an additional type of punishment to another measure of criminal legal impact actualized a number of studies devoted to a new legal phenomenon. D. Y. Borchenko ^[7] was one of the first to define the concept, nature, social purpose and procedure for the application of confiscation of property in a new format for Russian legal reality.

The peak of scientific activity on property confiscation issues occurred in 2010, when about five dissertations on various aspects of the functioning of this institute were defended.

V. B. Abramenko ^[8] considers the confiscation of property as a means of preventing crimes in the sphere of economic activity. Criminal law prevention is traditionally at the forefront of countering crime, thereby the author emphasizes in his research the promising possibilities of minimizing such crimes.

A. A. Propostin ^[9] considers this institution a little more broadly, defining it as a measure to combat crime, and certainly suitable arguments are reflected on the pages of the manuscript. Other authors ^{[10; 11; 12]} describe the current state of another measure of a criminal-legal nature, characterize it as an institution of criminal law, determine its place in the current criminal legislation.

Further, a number of ^{[13; 14; 15]} authors conduct a study based on changes in the social in the field we are considering, special attention should be paid to historical, comparative legal and criminal aspects.

It is a very fair statement by A. I. Korobeev and Yu. I. Kuleshov ^{[16, p. 56]} that as a result, the confiscation of property in its current form appears as a kind of symbiosis of a previously known type of punishment with the same name and a criminal procedural measure (usually referred to as "special" confiscation). Attention is also drawn to the fact that the criminal law does not regulate (unlike compulsory medical measures) the grounds and procedure for the application of confiscation of property.

In accordance with Article 104.1 of the Criminal Code of the Russian Federation, five categories of property are subject to confiscation, including tools, equipment or other means of committing a crime. An important aspect was noted by A. I. Chuchaev ^{[17, p. 13]} that the confiscation of the instrument of crime is also provided for in paragraph 1 of Part 3 of Article 81 of the Criminal Procedure Code of the Russian Federation. In this case, we mean only the instruments of the crime recognized as material evidence in accordance with the procedure established by law, whereas criminal legislation does not contain such a restriction.

The main essential feature distinguishing confiscation as a punishment from confiscation as another measure of a criminal nature is the nature of the seized property. When punishing a convicted person, property legally acquired by him and not used to commit a crime is seized. The application of another measure of a criminal-legal nature – property that has been criminally obtained or used to violate a criminal prohibition is seized – does not entail additional encumbrance, but serves as a way to restore the violated right and prevent the commission of other crimes ^{[18, p. 23-25]}.

Foreign researchers ^{[19, p. 305]} drew attention to the important question of how to treat the profit that a criminal receives from activities, including stories about their criminal actions, publishing books describing their actions or creating videos and subsequent distribution on digital platforms with a detailed description of their crimes. The authors argue that the proceeds derived from knowledge obtained as a result of criminal acts should be considered as indirect proceeds of crime and should be confiscated. This issue is also relevant for our domestic reality, "public" with stories about various crimes, criminals and criminal communities are actively popularized in social networks.

Thus, having considered the history of the development of confiscation of property, it is possible to state the unique aspects inherent only in this institution. There are quite a few works devoted to confiscation of property as a punishment, including dissertations. During the period of application as a punishment, there were many problems both in scientific and law enforcement aspects. The abolition of confiscation as a criminal punishment has not freed our law enforcement officers from the obligation to seize criminal property within the framework of criminal procedure legislation.

The current state of criminal law confiscation of property. The ambiguity of understanding the essence of the confiscation of property has actually led to the complete destruction as a crime prevention measure. The current situation hinders the understanding of the objective role of the mechanism of criminal law regulation and its further improvement in the process of legislative and law enforcement activities. In this regard, there is a need for a comprehensive study of the confiscation of property in criminal law, taking into account the latest innovations and trends in legal construction.

According to A.V. Kulikov and Yu. A. Hibners, the problem of applying the rule on confiscation of property is the basis necessary for it – a guilty verdict. Accordingly, the legislation does not limit the limits of judicial discretion in any way and does not determine dependence on any circumstances. Proceeding from this, the unrestricted right of the court in relation to the confiscation of property creates conditions for corruption and is ineffective for a positive impact on crime ^{[20, pp. 39-46]}.

M. M. Kulish rightly points out in his research ^{[21, p. 100-102]} that property that was issued to other persons under fictitious transactions for the purpose of concealment is also subject to confiscation. If, after the execution of the penalty in the form of confiscation of property, but before the expiration of the statutory limitation period of the court's conviction, other non-confiscated property that was acquired by the convicted person before the sentencing or at least after it was pronounced, but with funds subject to confiscation, the court that issued the sentence, or the court at the place of execution of the sentence on upon presentation of the bailiff, the court issues a ruling on the foreclosure of the discovered property, if it is subject to confiscation by law.

Confiscation of instruments and means of crime has a procedural and preventive nature, when things are seized to eliminate the public danger emanating from the properties of these things when they are used. Therefore, codes often explicitly state that such things are seized in order to prevent the commission of subsequent crimes or eliminate danger to society. According to its content, this form of confiscation refers to security measures according to S. V. Zemlyukov ^{[22, pp. 76-79]}.

K. D. Nikolaev ^{[23, p. 10-14]} proposes a classification of confiscation of property depending on the legal nature of the norms regulating it. Based on this criterion, such types of confiscation of property are distinguished as: 1) international law; 2) constitutional law; 3) criminal law; 4) criminal procedure; 5) administrative law; 6) civil law; 7) civil procedure; 8) customs law; 9) tax law; 10) land law and others .

The practical significance of this classification lies in the fact that it allows you to determine the place of the rules on the confiscation of property, which should be located in the relevant legislative acts related to a particular branch of law.

K. Y. Filipson and N. A. Ryabinin ^{[24, pp. 54-61]} believe that it is impossible to confiscate property that is in illegal possession due to the absence of ownership rights to it from the unscrupulous party. In this regard, it seems impossible from a legal point of view to transfer rights and obligations through compulsory succession. For this transfer of rights, it is necessary that the legal successor has such rights and obligations on a legal basis. In the case of the acquisition of property by illegal means, the ownership right to it does not arise, which means that it cannot be transferred and terminated by confiscation. Also, all encumbrances related to non-existent property rights are not transferable. We believe that it is impossible to transfer to the legal successor those rights that do not belong to the legal successor on a legal basis.

The authors' arguments are essential and correct for the idea of restoring social justice, maintaining the principle that no one has the right to receive income from criminal activity, however, despite the high standards of the legal mechanism for combating crime, law enforcement does not always reflect the declared ideals.

The idea of countering organized crime and terrorism by depriving offenders of the proceeds of their criminal activities has taken a central place in national and international law enforcement and security programs. In one of the studies ^{[25, pp. 495-515]}, the authors conclude that the confiscation of property seems to have little relation to the public damage caused by crimes that bring illegal income. Instead, according to the data, law enforcement agencies are focusing on "easy targets", "low-hanging fruit". This confirms the argument often cited in the criminological literature that the less influential are usually victims of the law enforcement process, while the richer and more privileged have more opportunities to avoid punishment and criminalization.

Table No. 1.

The main statistical indicators of the state of criminal record in Russia for 2003-2021 (Judicial Department at the Supreme Court of the Russian Federation. URL: http://www.cdep.ru/)

If we study the application of confiscation of property (Article 104.1 of the Criminal Code of the Russian Federation) (see Table No. 1), then we confirm the arguments of foreign researchers. The measure is not applied to those compositions of the special part for which such a counteraction mechanism was created. For example, in 2021, the courts applied the measure we are considering 3,463 times, of which 60% (2,084) for illegal actions and violation of the rules for handling narcotic drugs, psychotropic and potent substances, and then, based on the materials of forensic investigative practice, confiscate mainly the instruments of the crime, not the property, obtained during the crime.

Also interesting are the results of the application of Chapter 21 "Crimes against property" of the Criminal Code of the Russian Federation – 6.5% (247) among 218,396 persons brought to justice; Chapter 24 "Crimes against public safety" of the Criminal Code of the Russian Federation – 4% (140) where such measures should be applied in order to counter terrorism, extremism in Chapter 29 "Crimes against the foundations of the constitutional order and state security" of the Criminal Code of the Russian Federation – 0.49% (17), Chapter 30 "Crimes against state power, interests of public service and service in local self–government" of the Criminal Code of the Russian Federation - 10% (355) on corruption. Hardly anyone will object about the effectiveness and expediency of the existence of confiscation of property in its current form.

Such results are associated with defects in the content of the norms of Chapter 15.1 of the Criminal Code of the Russian Federation, according to S. S. Bosholov and V. G. Tatarnikov ^{[26, pp. 66-78]}. Since, according to the previous legislation, the confiscation of property as an additional measure of punishment was punitive in nature and concerned the property of the convicted person, formally obtained legally and was his property, this made it possible to apply this type of punishment to persons guilty of large-scale embezzlement, corruption crimes, other grave and especially grave crimes and in cases where the stolen valuables, the subject of the bribe, etc. were not found during the investigation, lost by the guilty person or spent.

On the other hand, if the object of the crime, for example, money or other valuables received as a bribe, is still found in the possession of the perpetrator, then there are no grounds for the confiscation of property in relation to other property of the perpetrator, within the meaning of the current legislation. This is also, in our opinion, nothing more than another paradox of law enforcement practice.

According to some authors ^{[27, p. 63-67]}, confiscation of property should again become an additional punishment in the Criminal Code of the Russian Federation, while there should be not only a closed list of all its compositions for which it is applied, but also the procedure for its application in the Criminal Code of the Russian Federation, and also the types of property that are not subject to confiscation. For crimes related to corruption, terrorism and drug trafficking, confiscation should become a mandatory additional punishment.

A.V. Kulikov and Yu.A. Hibners ^{[28, pp. 13-17]} also propose to increase the effectiveness of the use of confiscation of property as another measure of a criminal law nature by introducing a number of changes to the Criminal Code of the Russian Federation and the Code of Criminal Procedure of the Russian Federation, in particular: to give a different expansive wording in Article 104.1 of the Criminal Code of the Russian Federation and paragraph 1 part 3 of Article 81 of the Code of Criminal Procedure of the Russian Federation; to abandon the restrictive list of crimes for which confiscation of property is prescribed; to expand the list of property that can be seized.

The transformation of the institute into another measure of a criminal-legal nature, as practice shows, has not cleared them of problems and there are questions of further improvement. In fact, the property of the guilty person is not subject to confiscation, even if its value is several times higher than the criminal's legal income. As a result of the complexity of the mechanism of such proof, criminals remain unpunished.

Conclusions and recommendations.

The mechanism proposed by the legislator does not form an effective deterrent barrier that would affect the state, dynamics and structure of crime. And if so, then a new mechanism is needed. If this is not another measure, then this is a kind of beginning of a positive impact on crime. We should proceed from the paradigm – only the property that is criminal can be confiscated.

At the same time, the new social and legal reality requires a comprehensive study of the institution of confiscation of property, taking into account its unique history. Unjustified legal changes have distorted the very purpose of the institute under study, which allows us to conclude about its theoretical and applied relevance.

The current state requires theoretical and applied research of property confiscation in criminal law, within the framework of which it is necessary to determine the fundamental theoretical categories that allow further study of property confiscation and its development in the domestic theory of criminal law, criminology and penal enforcement law.

It is necessary to revive the existing institution and resolve issues of ensuring the goals of criminal law. The damage caused by crimes is estimated at about 7 billion rubles, shadow hundreds of billions, approximately 100 million are reimbursed. The situation contradicts the general rule of countering crime.

In further studies, it is planned to collect and study data in legislative and law enforcement activities. The materials obtained will allow us to develop measures aimed at improving the Russian criminal legislation in terms of confiscation of property.